Protect and preserve?

New Criminal Law Review

Volumn 13, Issue 1, 2010, Pages 127-141

  Cahn, Naomi ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77949737268     PISSN: 19334192     EISSN: 19334206     Source Type: Journal    
DOI: 10.1525/nclr.2010.13.1.127     Document Type: Conference Paper

References (79)

1. Dan Markel, Jennifer M. Collins, & Ethan J. Leib, Privilege or Punish: Criminal Justice and the Challenge of Family Ties (2009).
2. E.g., id. at xii.
3. On family privacy, see, e.g., Ariela Dubler, Sexing Skinner (forthcoming 2010);.
4. Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 Geo. L.J. 123, 128 (2007).
5. On emotion in the law, see, e.g., Dan Kahan, The Anatomy of Disgust in Criminal Law, 96 Mich. L. Rev. 1621, 1656 (1999);.
6. Clare Huntington, Family Law's Textures, Emory L.J. (forthcoming 2010);.
7. Clare Huntington, Repairing Family Law, 57 Duke L.J. 1245, 1274-93 (2008) (examining the relationship between family law and the "law and emotion" perspective);.
8. Solangel Maldonado, Cultivating Forgiveness: Reducing Hostility and Conflict After Divorce, 43 Wake Forest L. Rev. 441, 482-94 (2008) (same);.
9. Reva Siegel, Dignity and the Politics of Protection: Abortion Restrictions under Casey/Carhart, 117 Yale L.J. 1694, 1706-35 (2008).
10. Moreover, as Professors Alice Ristroph and Melissa Murray point out, the critical issue for Professors Markel, Collins, and Leib is a "statist" argument: ". . . whether or not families serve the interests of the state. The relevant perspective is the perspective of the state itself, " Disestablishing the Family, Yale L.J. (forthcoming 2010).
11. The state might also seek to respect the intimacy and trust that typify intrafamilial relationships by protecting the victim from ongoing breaches of trust. See infra (discussions of incest and domestic violence).
12. Markel, Collins, and Leib do recognize some of the issues involved in voluntariness and the lack thereof, such as when men engage in sexual intercourse having taken precautions not to conceive a baby, where there has been rape, or where pregnancy has been achieved through gamete provision (100-02).
13. Naomi Cahn & June Carbone, Family Classes (unpublished manuscript 2009).
14. See Naomi Cahn, Test Tube Families: Why the Fertility Market Needs Legal Regulation (2009):.
15. Debora Spar, The Baby Business (2007);.
16. Naomi Cahn & Jennifer Collins, Eight Is Enough, 103 Nw. U. L. Rev. Colloquy 501 (2009) (discussing some of the anger at Nadya Suleman).
17. For general histories of both birth control and birth-enhancing technologies, see Debora Spar & and Anna Harrington, Selling Stem Cell Science: How Markets Drive Law along the Technological Frontier, 33 Am. J.L. & Med. 541 (2007).
18. Guttmacher Institute, Improving Access to Contraceptive Care 3 (2008), available at http://www.guttmacher.org/pubs/2008/05/09/ ImprovingContraceptiveUse.pdf (last visited Dec. 7, 2009).
19. Guttmacher Institute, Improving Access to Contraceptive Care 3 (2008), available at http://www.guttmacher.org/pubs/2008/05/09/ ImprovingContraceptiveUse.pdf (last visited Dec. 7, 2009).
20. Heather D. Boonstra et al., Abortion in Women's Lives 26 (Guttmacher Institute 2006), available at http://www.guttmacher.org/pubs/2006/05/04/AiWL.pdf (last visited Dec. 7, 2009).
21. Maher v. Roe, 432 U.S. 464 (1977);.
22. Harris v. McRae, 448 U.S. 297 (1980). 16.
23. http://www.hyde30years.nnaf.org/resources/guttmacher-public-fund.pdf (last visited Dec. 7, 2009).
24. Some of these women are, however, luckier than others if they live in one of the seventeen states that covers medically necessary abortions with state funds. Guttmacher Institute, State Funding of Abortion Under Medicaid (2009), available at http://www.guttmacher.org/pubs/fb-contraceptive-serv.html (last visited Dec. 7, 2009).
25. See, e.g., Rickie Solinger, Wake Up Little Susie: Single Pregnancy and Race Before Roe v. Wade (1992);.
26. Kristin Luker, Abortion and the Politics of Motherhood (1985);.
27. Kristin Luker, When Sex Goes to School: Warring Views on Sex-and Sex Education-Since the Sixties (2007);.
28. Naomi Cahn, Birthing Relationships, 17 Wis. Women's L.J. 263 (2002).
29. For a critique of various biases within the state's definition of family, see Markel et al., supra note 1, at 84.
30. See., e.g., Linda McClain, The Place of Families (2007);.
31. Huntington, Repairing Family Law; Clare Huntington, Happy Families? Translating Positive Psychology into Family Law, 16 Va. J. Soc. Pol'y & L. 385 (2009).
32. They state: "On the burdens side of the ledger, we support decriminalization in the cases of parental responsibility laws (based on strict and vicarious liability), bigamy, adultery, and nonpayment of parental support; we endorse decriminalizing incest between most adults, though we are divided on certain subissues in the incest context; and we are highly skeptical of criminalization in the nonpayment of child support context, though we concede that more research needs to be done on just how effective criminalization is in achieving compliance. The only area in which we are largely unconflicted about criminalization on the burden side is the omissions (duty to rescue) context." Markel et al., supra note 1, at 150.
33. For an analogous claim about common law marriage, see Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 Or. L. Rev. 709 (1996).
34. They explain: "we think that in situations where genuine and mature consent between the parties is possible and where negative externalities can be eliminated, the criminal law should prescind from application" (119).
35. But see Commonwealth v. Rahim, 805 N.E.2d 13 (Mass. 2004) (dismissing an incest indictment in a case involving a sexual relationship between a sixty-year-old stepfather and his sixteen-year-old stepdaughter because of lack of blood relationship).
36. See Naomi Cahn, Perfect Substitutes or the Real Thing?, 52 Duke L.J. 1077, 1139-46 (2003).
37. See Lawrence v. Texas, 539 U.S. 558, 599 (2003) (Scalia, J., dissenting) (arguing that the Court's reasoning would call into question the constitutionality of "criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity");.
38. see also Brett H. McDonnell, Is Incest Next?, 10 Cardozo J.L. & Gender 337, 348-55 (2004) (asking whether, after Lawrence, consensual adult incest falls within the zone of intimate behavior covered by the Constitution's guarantee of liberty);.
39. see Note, Inbred Obscurity: Improving Incest Laws in the Shadow of the "Sexual Family, " 119 Harv. L. Rev. 2464, 2465-76 (2006) (suggesting that incest bans that criminalize sexual relationships between certain relatives, whether consensual or nonconsensual, are based on traditional heterosexual norms of marriage and family and "undermine a consistent, consent-based scheme for enforcing incest prohibitions").
40. Brenda J. Hammer, Note, Tainted Love: What the Seventh Circuit Got Wrong in Muth v. Frank, 56 DePaul L. Rev. 1065, 1097 (2007) (questioning an incest ban as applied to a consensual adult relationship where the adults were not raised together as children).
41. There were questions even before Lawrence. See, e.g., Ruthann Robson, Assimilation, Marriage, and Lesbian Liberation, 75 Temp. L. Rev. 709, 758-65 (2002) (questioning civil marital incest prohibitions).
42. See, e.g., Robin Fretwell Wilson, The Cradle of Abuse: Evaluating the Danger Posed by a Sexually Predatory Parent to the Victim's Siblings, 51 Emory L.J. 241 (2002) (discussing father-daughter incest, and noting that when one child is molested, there is a high risk of additional siblings being sexually abused);.
43. see also Robin Fretwell Wilson, Removing Violent Parents from the Home: A Test Case for the Public Health Approach, 12 Va. J. Soc. Pol'y & L. 638, 665 (2005) (arguing that intrafamilial dynamics of potential abuse and exploitation provide a significant justification for the continuation of the incest ban; although these intrafamilial dynamics are less important when the children are raised in separate families, there are additional justifications for continuing to ban incest in this circumstance);.
44. see also Jennifer M. Collins, Lady Madonna, Children at Your Feet: The Criminal Justice System's Romanticization of the Parent-Child Relationship, 93 Iowa L. Rev. 131, 145-49, 166 (2007) (suggesting that, where it is available, prosecutors may file criminal charges under the lesser penalties applicable to incest rather than to child sexual abuse, and arguing that this privileges parent offenders).
45. For further discussion of the incest ban, see Naomi Cahn, Accidental Incest: Drawing the Line-or the Curtain?-for Reproductive Technology, 32 Harv. J.L. & Gender 59 (2009).
46. Courtney Megan Cahill, Same Sex Marriage, Slippery Slope Rhetoric, and the Politics of Disgust: A Critical Perspective on Contemporary Family Discourse and the Incest Taboo, 99 Nw. U. L. Rev. 1543, 1547 (2005).
47. Cahill, id., at 1610.
48. Markel, Collins, and Leib acknowledge some lack of uniformity among them on these issues (e.g., supra note 1, 93 n.36, 150).
49. See Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 Iowa L. Rev. 1253 (2009).
50. They observe: "Thus, if a gay couple lives in a state where they cannot adopt as a couple together, then the incest statute will not 'protect' a child who has been adopted by X against the sexual misconduct perpetrated by X's partner, Y-assuming that Y has not been able to create a legally binding relationship to the child. "
51. Markel et al., supra note 1, at 125.
52. The exact nature of this privacy remains contested. See, e.g., Laurence H. Tribe, Lawrence v. Texas: The "Fundamental Right" that Dare Not Speak Its Name, 117 Harv. L. Rev. 1893 (2004);.
53. Linda C McClain, The Place of Families: Fostering Capacity, Equality and Responsibility (2006);.
54. see also State v. Lowe, 861 N.E.2d 512 (Ohio 2007) (Lawrence does not invalidate state law criminalizing consensual adult incest when the statute is applied to stepfather and stepdaughter), .
55. cert. denied, 128 S. Ct. 94 (2007);.
56. Terry Turnipseed, Scalia's Ship of Revulsion Has Sailed: Will Lawrence Protect Adults who Adopt Lovers to Help Ensure Their Inheritance from Incest Prosecution? 32 Hamline L. Rev. 95 (2009).
57. See, e.g., Lisa Haberman, The Seduction of Power: An Analogy of Incest and Antebellum Slavery, 13 Hastings Women's L.J. 307, 317 (2002);.
58. Jocelyn Ho, Note, Incest and Sex Offender Registration: Who is Registration Helping and Who is it Hurting?, 14 Cardozo J.L. & Gender 429, 444 (2008).
59. To be sure, the authors acknowledge that they are limiting their analysis to criminal law;.
60. supra note 1, at 127.
61. Most reported criminal cases involve father-daughter sexual relationships. See, e.g., Ho, supra note 33, at 433.
62. Jennifer C. Mitchell, Note, Crime Without Punishment: How the Legal System is Failing Child Victims of Intra-Familial Abuse, 9 J.L. Fam. Stud. 413 (2007).
63. See, e.g., Castle Rock v. Gonzales, 545 U.S. 748 (2005).
64. Catherine Popham Durant, Note, When to Arrest: What Influences Police Determination to Arrest When There is a Report of Domestic Violence?, 12 S. Cal. Rev. L. & Women's Stud. 301, 305-06 (2003).
65. 595 F. Supp. 1521, 1524, 1528 (D. Conn. 1984).
66. Emily J. Sack, Battered Women and the State: The Struggle for the Future of Domestic Violence Policy, 2004 Wis. L. Rev. 1657, 1668 (2004).
67. Deborah Epstein, Margaret E. Bell, and Lisa A. Goodman, Transforming Aggressive Prosecution Policies: Prioritizing Victims' Long-Term Safety in the Prosecution of Domestic Violence Cases, 11 Am. U. J. Gender Soc. Pol'y & L. 465, 466 (2003).
68. Kimberly D. Bailey, The Aftermath of Crawford and Davis: Deconstructing the Sound of Silence, 2009 B.Y.U.L. Rev. 1, 11-12.
69. Nichole Miras Mordini, Note, Mandatory State Interventions for Domestic Abuse Cases: An Examination of the Effects on Victim Safety and Autonomy, 52 Drake L. Rev. 295, 317-20 (2004);.
70. Kalyani Robbins, Note, No-Drop Prosecution of Domestic Violence: Just Good Policy, or Equal Protection Mandate?, 52 Stan. L. Rev. 205 (1999).
71. See Mordini, id.
72. See, e.g., G. Kristian Miccio, A House Divided: Mandatory Arrest, Domestic Violence, and the Conservatization of the Battered Women's Movement, 42 Hous. L. Rev. 237, 281 (2005);.
73. Dennis P. Saccuzzo, How Should the Police Respond to Domestic Violence: A Therapeutic Jurisprudence Analysis of Mandatory Arrest, 39 Santa Clara L. Rev. 765, 779-80 (1999);.
74. Sara R. Benson, Failure to Arrest: A Pilot Study of Police Response to Domestic Violence in Rural Illinois, 17 Am. U. J. Gender Soc. Pol'y & L. 685 (2009).
75. Professor Sally Goldfarb argues that the law should craft responses to domestic violence that recognize that a woman may not leave a battering relationship because she "has a deep emotional bond with her partner and wants to preserve and improve the relationship".
76. Sally Goldfarb, Reconceiving Civil Protection Orders for Domestic Violence: Can Law Help End the Abuse without Ending the Relationship?, 29 Cardozo L. Rev. 1487, 1499 (2008).
77. For arguments about expanding our notions of justice and accountability within the international criminal system, see Fionnuala Ni Aolain, Naomi Cahn, & Dina Haynes, Returning Home: Post-Conflict Reconstruction and Gender (forthcoming 2010).
78. Leigh Goodmark, Autonomy Feminism: An Anti-Essentialist Critique of Mandatory Interventions in Domestic Violence Cases, Fla. St. L. Rev. (forthcoming 2010).
79. As a benefit, consider eligibility for health care insurance based on family status; as a burden, consider Romeo and Juliet who, because of their families' feuds, were doomed.